Open Decision Ledger · Criminal law
Punitive forfeiture and the non-retroactivity of the 2022 amendment
Supreme Court, June 26, 2025, 2025Do4689 (judgment)
No holding summary · checked against points at issue. The official text publishes no summary of the holding for this decision. The quotation and factors in this record are copied verbatim from the points at issue; the evidence for each axis is taken from the points at issue, the order and the reasons.
Case name: 전자금융거래법위반·전기통신사업법위반·공전자기록등불실기재·불실기재공전자기록등행사·상법위반
Official text on the National Law Information Center
Question
Does the forfeiture that substitutes for confiscation under criminal law carry a punitive character, and in construing the confiscation and forfeiture provisions of the Act on the Regulation and Punishment of the Concealment of Criminal Proceeds and its Supplementary Provisions (4 January 2022) Article 2, do the amended provisions apply only to offences committed after the Act came into force?
Holding
Yes on both. The Supreme Court held that forfeiture substituting for confiscation is an ancillary measure pronounced in a guilty judgment against a defendant and therefore has a punitive character, so the provisions fixing its requirements must be read strictly and may not be construed to the defendant's detriment beyond the possible meaning of their words. Under Supplementary Provisions Article 2, the amended provisions apply only to offences committed after the Act came into force on 4 January 2022, so property derived from the five electronic financial transactions offences committed before that date could be confiscated under neither the new Act nor the former Act's list of serious crimes, and the Court reduced the amount forfeited from KRW 115,929,658 to KRW 84,429,658.
Points at issue, verbatim
2022. 1. 4. 개정된 범죄수익은닉의 규제 및 처벌 등에 관한 법률의 몰수·추징에 관한 규정은 같은 법 시행 후 발생한 범죄행위부터 적용되는지 여부(적극)
Unofficial English translation
Whether the provisions of the Act on Regulation and Punishment of Criminal Proceeds Concealment, amended on January 4, 2022, concerning confiscation and collection of equivalent value apply only to criminal acts committed after the enforcement of the Act (affirmative)
Disposition
Reversed and rendered by the Supreme Court Stated in the decision
원심판결과 제1심판결 중 추징에 관한 부분을 파기한다. 피고인으로부터 84,429,658원을 추징한다. 피고인의 나머지 상고를 기각한다.
Unofficial English translation
The portion of the judgment of the court below and the judgment of the court of first instance concerning additional collection is reversed. 84,429,658 won shall be collected from the defendant. The defendant's remaining final appeal is dismissed.
Form of the test
Elements stated Stated in the decision
개정된 범죄수익은닉규제법의 몰수·추징에 관한 규정은 이 사건 부칙 제2조에 따라 범죄수익은닉규제법 시행 후 발생한 범죄행위부터 적용된다고 보아야 한다.
Unofficial English translation
The provisions of the amended Act on Regulation and Punishment of Criminal Proceeds Concealment concerning confiscation and collection of equivalent value should be regarded as applying to criminal acts committed after the enforcement of the Act, pursuant to Article 2 of the Additional Provisions in this case.
Factors
- 2022. 1. 4. 개정·시행된 범죄수익은닉의 규제 및 처벌 등에 관한 법률이 구 범죄수익은닉의 규제 및 처벌 등에 관한 법률과 달리 일정한 법정형 이상의 범죄를 범죄수익 환수의 대상이 되는 ‘중대범죄’로 정한 취지
- 형사법상 몰수를 갈음하는 추징이 형벌적 성격을 가지는지 여부(적극)
- 몰수·추징의 요건을 정한 범죄수익은닉의 규제 및 처벌 등에 관한 법률 및 같은 법 부칙(2022. 1. 4.) 제2조를 해석할 때 고려할 사항
- 2022. 1. 4. 개정된 범죄수익은닉의 규제 및 처벌 등에 관한 법률의 몰수·추징에 관한 규정은 같은 법 시행 후 발생한 범죄행위부터 적용되는지 여부(적극)
Unofficial English translation
• The purpose of the Act on Regulation and Punishment of Criminal Proceeds Concealment, amended and enforced on January 4, 2022, designating, unlike the former Act on Regulation and Punishment of Criminal Proceeds Concealment, crimes punishable by a certain statutory penalty or greater as 'serious crimes' subject to the recovery of criminal proceeds
• Whether additional collection in lieu of confiscation under criminal law has the nature of a penalty (affirmative)
• Matters to be considered when interpreting the Act on Regulation and Punishment of Criminal Proceeds Concealment, which prescribes the requirements for confiscation and collection of equivalent value, and Article 2 of the Additional Provisions thereto (January 4, 2022)
• Whether the provisions of the Act on Regulation and Punishment of Criminal Proceeds Concealment, amended on January 4, 2022, concerning confiscation and collection of equivalent value apply only to criminal acts committed after the enforcement of the Act (affirmative)
Relation to precedent
Follows earlier decisions Stated in the decision
대법원 2006. 11. 9. 선고 2006도4888 판결(공2006하, 2125)
Unofficial English translation
Supreme Court Decision 2006Do4888 decided November 9, 2006 (Gong 2006 Ha, 2125)
Decisions referred to
대법원 2006. 11. 9. 선고 2006도4888 판결(공2006하, 2125), 대법원 2022. 7. 28. 선고 2019두63447 판결(공2022하, 1772), 대법원 2023. 4. 21. 자 2023모176 결정(공2023상, 879), 대법원 2024. 6. 13. 선고 2023도17596 판결(공2024하, 1134)
Burden of proof
Not addressed Not in the decision
Open question and revisit condition
If a criminal act begins before 4 January 2022 and continues after it, which version of the Act governs the confiscation and forfeiture of the proceeds?
A later decision on a continuing offence that straddles 4 January 2022 would settle the question this decision leaves open. Any amendment to Article 8(1)(i) or Article 10(1) of the Act, or to Supplementary Provisions Article 2, would require the entry to be read again, as would a departure from the line of Supreme Court Decision 2006Do4888 on the punitive character of forfeiture.
Cross-family AI independent reading & axis check
8 of 8 axes matched GPT-6 Astra (OpenAI, codex CLI) · 2026-10-25
A reader from another model family (GPT-6 Astra), given the official text but not the primary reading, agreed on all 8 axes.
Raw responses and comparison record: Protocol · Blind readings (JSONL) · Axis comparison (JSONL) · SHA-256 (JSON)
Lower-court contrast & scope of application
Lower-court reading vs. Supreme Court holding
Lower-court context: The Busan District Court, sitting on appeal, in its judgment of 11 March 2025 (2024No3931), kept the first-instance finding of guilt on all charges and left standing the order to forfeit KRW 115,929,658 made under the Act on the Regulation and Punishment of the Concealment of Criminal Proceeds, which included KRW 31,500,000 obtained through the electronic financial transactions offences counted at items 11, 12 and 14 to 16 of the schedule of offences.
Supreme Court standard: The Supreme Court found no error in the convictions under the Electronic Financial Transactions Act and the Telecommunications Business Act. On the forfeiture it held that the five electronic financial transactions offences had taken place before the Act came into force on 4 January 2022 and were not among the serious crimes listed in the Annex to Article 2(1) of the former Act, so the property could be confiscated under neither version of the Act, and the court below had misapprehended the law on forfeiture in a way that affected the judgment. It reversed the forfeiture part of both judgments, and because the record and the evidence gathered up to the court below were enough for it to decide the point itself, it forfeited KRW 84,429,658 from the defendant under Article 10(1) and Article 8(1)(i) of the Act and dismissed the rest of the appeal.
Distinguishing conditions
- An offence committed after the Act came into force on 4 January 2022, since the amended confiscation and forfeiture provisions govern it by their own terms.
- A pre-amendment offence that is listed as a serious crime in the Annex to Article 2(1) of the former Act, for which forfeiture remains available under that Act.
- Property that can actually be confiscated under Article 8(1)(i), so that Article 10(1) and its valuation yardstick never arise.
Record verification notes
Set each criminal act in the schedule of offences against 4 January 2022, since the Court excluded five counts because they predated the Act, and check each excluded count against the Annex to Article 2(1) of the former Act, as the Court did before rejecting forfeiture under either version. Then verify the arithmetic the Court used, KRW 115,929,658 less KRW 31,500,000 equals KRW 84,429,658, and keep in mind that the convictions themselves were left intact, so only the forfeiture part was retried here.
From the official text
Points at issue
2022. 1. 4. 개정·시행된 범죄수익은닉의 규제 및 처벌 등에 관한 법률이 구 범죄수익은닉의 규제 및 처벌 등에 관한 법률과 달리 일정한 법정형 이상의 범죄를 범죄수익 환수의 대상이 되는 ‘중대범죄’로 정한 취지 / 형사법상 몰수를 갈음하는 추징이 형벌적 성격을 가지는지 여부(적극) / 몰수·추징의 요건을 정한 범죄수익은닉의 규제 및 처벌 등에 관한 법률 및 같은 법 부칙(2022. 1. 4.) 제2조를 해석할 때 고려할 사항 / 2022. 1. 4. 개정된 범죄수익은닉의 규제 및 처벌 등에 관한 법률의 몰수·추징에 관한 규정은 같은 법 시행 후 발생한 범죄행위부터 적용되는지 여부(적극)
Unofficial English translation
The purpose of the Act on Regulation and Punishment of Criminal Proceeds Concealment, amended and enforced on January 4, 2022, designating, unlike the former Act on Regulation and Punishment of Criminal Proceeds Concealment, crimes punishable by a certain statutory penalty or greater as 'serious crimes' subject to the recovery of criminal proceeds / Whether additional collection in lieu of confiscation under criminal law has the nature of a penalty (affirmative) / Matters to be considered when interpreting the Act on Regulation and Punishment of Criminal Proceeds Concealment, which prescribes the requirements for confiscation and collection of equivalent value, and Article 2 of the Additional Provisions thereto (January 4, 2022) / Whether the provisions of the Act on Regulation and Punishment of Criminal Proceeds Concealment, amended on January 4, 2022, concerning confiscation and collection of equivalent value apply only to criminal acts committed after the enforcement of the Act (affirmative)
Summary of the holding
The official text publishes no summary of the holding for this decision. The quotation and factors in this record are copied verbatim from the points at issue; the evidence for each axis is taken from the points at issue, the order and the reasons.
Order
원심판결과 제1심판결 중 추징에 관한 부분을 파기한다. 피고인으로부터 84,429,658원을 추징한다. 피고인의 나머지 상고를 기각한다.
Unofficial English translation
The portion of the judgment of the court below and the judgment of the court of first instance concerning additional collection is reversed. 84,429,658 won shall be collected from the defendant. The defendant's remaining final appeal is dismissed.
Provisions referred to
헌법 제12조 제1항, 제13조 제1항, 형법 제1조 제1항, 구 범죄수익은닉규제법(2022. 1. 4. 법률 제18672호로 개정되기 전의 것) 제2조, 범죄수익은닉의 규제 및 처벌 등에 관한 법률 제2조, 제8조 제1항 제1호, 제10조 제1항, 부칙(2022. 1. 4.) 제1조, 제2조
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